THIRD DIVISION
has a two-fold purpose; the first, which is mentioned in the provision of the
[G.R. No. 102858. July 28, 1997]
THE DIRECTOR OF LANDS, petitioner, vs. COURT OF APPEALS and
TEODORO ABISTADO, substituted by MARGARITA, MARISSA, MARIBEL,
ARNOLD and MARY ANN, all surnamed ABISTADO, respondents.
FACTS:
On December 8, 1986, Private Respondent Teodoro Abistado filed a petition for
original registration of his title over 648 square meters of land under
Presidential Decree (PD) No. 1529.iThe application was docketed as Land
Registration Case (LRC) No. 86 and assigned to Branch 44 of the Regional Trial Court
of Mamburao, Occidental Mindoro. However, during the pendency of his petition,
applicant died. Hence, his heirs -- Margarita, Marissa, Maribel, Arnold and Mary Ann,
all surnamed Abistado -- represented by their aunt Josefa Abistado, who was
appointed their guardian ad litem, were substituted as applicants.
The land registration court in its decision dated June 13, 1989 dismissed the petition
for want of jurisdiction. However, it found that the applicants through their
predecessors-in-interest had been in open, continuous, exclusive and peaceful
possession of the subject land since 1938.
In dismissing the petition, the trial court reasoned:
"x x x. However, the Court noted that applicants failed to comply with the provisions
of Section 23 (1) of PD 1529, requiring the Applicants to publish the notice of Initial
Hearing (Exh. `E') in a newspaper of general circulation in the Philippines. Exhibit `E'
was only published in the Official Gazette (Exhibits `F' and `G'). Consequently, the
Court is of the well considered view that it has not legally acquired jurisdiction over
the instant application for want of compliance with the mandatory provision requiring
publication of the notice of initial hearing in a newspaper of general circulation."
The trial court also cited Ministry of Justice Opinion No. 48, Series of 1982, which in
its pertinent portion provides:
It bears emphasis that the publication requirement under Section 23 [of PD 1529]
aforequoted provision refers to publication in the Official Gazette, and is
jurisdictional; while the second, which is mentioned in the opening clause of the
same paragraph, refers to publication not only in the Official Gazette but also in a
newspaper of general circulation, and is procedural. Neither one nor the other is
dispensable. As to the first, publication in the Official Gazette is indispensably
necessary because without it, the court would be powerless to assume jurisdiction
over a particular land registration case. As to the second, publication of the notice of
initial hearing also in a newspaper of general circulation is indispensably necessary as
a requirement of procedural due process; otherwise, any decision that the court may
promulgate in the case would be legally infirm.
Private respondents appealed to Respondent Court of Appeals which set aside the
decision of the trial court and ordered the registration of the title in the name of
Teodoro Abistado.
In reversing the decision of the trial court, Respondent Court of Appeals ruled:
x x x although the requirement of publication in the Official Gazette and in a
newspaper of general circulation is couched in mandatory terms, it cannot be
gainsaid that the law also mandates with equal force that publication in the Official
Gazette shall be sufficient to confer jurisdiction upon the court.
Further, Respondent Court found that the oppositors were afforded the opportunity
to explain matters fully and present their side. Thus, it justified its disposition in this
wise:
x x x We do not see how the lack of compliance with the required procedure
prejudiced them in any way. Moreover, the other requirements of: publication in the
Official Gazette, personal notice by mailing, and posting at the site and other
conspicuous places, were complied with and these are sufficient to notify any party
who is minded to make any objection of the application for registration.
The Director of Lands represented by the Solicitor General thus elevated this
recourse to us.
Petitioner alleges that Respondent Court of Appeals committed grave abuse of
discretion in holding
x x x that publication of the petition for registration of title in LRC Case No. 86 need
not be published in a newspaper of general circulation, and in not dismissing LRC
Case No. 86 for want of such publication.
Petitioner points out that under Section 23 of PD 1529, the notice of initial hearing
shall be published both in the Official Gazette and in a newspaper of general
circulation. According to petitioner, publication in the Official Gazette is necessary to
confer jurisdiction upon the trial court, and xxx in xxx a newspaper of general
circulation to comply with the notice requirement of due process.ii[11]
Private respondents, on the other hand, contend that failure to comply with the
requirement of publication in a newspaper of general circulation is a mere procedural
defect. They add that publication in the Official Gazette is sufficient to confer
jurisdiction.
ISSUE:
Is newspaper publication of the notice of initial hearing in an original land
registration case mandatory or directory?
DECISION:
Newspaper publication of the notice of initial hearing in an original land registration
case is mandatory. The answer is impelled by the demands of statutory construction
and the due process rationale behind the publication requirement.
Under Section 23 (1) of Presidential Decree No. 1529, the public shall be given notice
of initial hearing of the application for land registration by means of (1) publication;
(2) mailing; and (3) posting.
The law used the term shall in prescribing the work to be done by the Commissioner
of Land Registration upon the latters receipt of the court order setting the time for
initial hearing. The said word denotes an imperative and thus indicates the
mandatory character of a statute. While concededly such literal mandate is not an
absolute rule in statutory construction, as its import ultimately depends upon its
context in the entire provision, the court hold that in the present case the term must
be understood in its normal mandatory meaning.
In Republic vs. Marasigan, the Court through Mr. Justice Hilario G. Davide, Jr. held
that Section 23 of PD 1529 requires notice of the initial hearing by means of (1)
publication, (2) mailing and (3) posting, all of which must be complied with.
If the intention of the law were otherwise, said section would not have stressed in
detail the requirements of mailing of notices to all persons named in the petition
who, per Section 15 of the Decree, include owners of adjoining properties, and
occupants of the land.
Indeed, if mailing of notices is essential, then by parity of reasoning, publication in a
newspaper of general circulation is likewise imperative since the law included such
requirement in its detailed provision.
It should be noted further that land registration is a proceeding in rem. Being in rem,
such proceeding requires constructive seizure of the land as against all persons,
including the state, who have rights to or interests in the property. An in rem
proceeding is validated essentially through publication. This being so, the process
must strictly be complied with. Otherwise, persons who may be interested or whose
rights may be adversely affected would be barred from contesting an application
which they had no knowledge of.
The elementary norms of due process require that before the claimed property is
taken from concerned parties and registered in the name of the applicant, said
parties must be given notice and opportunity to oppose.
It may be asked why publication in a newspaper of general circulation should be
deemed mandatory when the law already requires notice by publication in the Official
Gazette as well as by mailing and posting, all of which have already been complied
with in the case at hand. The reason is due process and the reality that the Official
Gazette is not as widely read and circulated as newspapers and is oftentimes delayed
in its circulation, such that the notices published therein may not reach the interested
parties on time, if at all. Additionally, such parties may not be owners of neighboring
properties, and may in fact not own any other real estate.
In sum, the all-encompassing in rem nature of land registration cases, the
consequences of default orders issued against the whole world and the objective of
disseminating the notice in as wide a manner as possible demand a mandatory
construction of the requirements for publication, mailing and posting.